Block, Crouch Keeter, Behm & Sayed, LLP

Christopher K. Behm
By Christopher K. Behm

Originally printed in Change Order, Volume 15, Number 2 (April 2001), which is published by the NCBA's Construction Law Section

 

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In the Trenches and the Trees

Appelate Court Attempts to Clarify the "Inherently Dangerous"
Exception in Kinsey v. Spann

North Carolina courts spent the better part of the twentieth century wrestling with the question of what constitutes an "inherently dangerous" activity such that an employer or owner cannot delegate its duty of care to its independent contractor. The North Carolina Court of Appeals recently issued an opinion in Kinsey v. Spann, 533 S.E.2d 487 (2000), which attempts to clarify the issue for lawyers in North Carolina. Despite the Kinsey court's efforts, however, North Carolina attorneys litigating "inherently dangerous" activity cases may still find themselves facing more questions than answers.

The Kinsey Opinion

Kinsey arose when defendant Frink, whose property in a "populated, urban area" of Wilmington had been damaged during Hurricane Fran, engaged the services of her great-nephew, defendant Spann, to cut down and remove some dead trees from her yard. Spann was not a professional tree feller, but had received instruction on the subject from a tree trimming school in California. In removing the trees, Spann caused a branch to fall on the head of a neighbor who was working in his own yard, resulting in the neighbor's death two days later.

The administratrix of the neighbor's estate brought suit against both the landowner and her tree-felling nephew. One of the plaintiff's claims sought to hold Frink liable for the negligence of Spann, even if Spann was an independent contractor and not an agent of Frink. The basis for plaintiff's claim was that felling of trees constituted an inherently dangerous activity. At trial, the court refused to submit to the jury plaintiff's inherently dangerous activity cause of action. After the jury returned a verdict against only Spann, the plaintiff filed a motion for new trial, which the trial court denied. The plaintiff then appealed.

The Kinsey court attempted to clarify the confusing patchwork of past opinions concerning a principal's liability for independent contractors engaged in inherently dangerous activities. First, the court noted that prior precedent had differentiated between "ultrahazardous" and "inherently dangerous" activities, defining "inherently dangerous" activities as "those dangerous activities that carry with them certain attendant risks, but whose risks (unlike ultrahazardous ones) can be eliminated by taking certain special precautions."

The court noted that "[w]hen inherently dangerous activities are involved, any liability by the employer is governed by principles of negligence, as opposed to strict liability." However, the court noted rather matter-of-factly that "there has been some inconsistency within the opinions of our courts as to whose negligence is to be considered."

While some earlier decisions had looked at the negligence of the independent contractor and imputed liability to the employer for any negligence of the contractor, the court, citing Woodson v. Rowland, 329 N.C. 330, 407 S.E.2d 222 (1991), Lane v. R.N. Rouse & Co., 135 N.C. App. 494, 521 S.E.2d 137 (1999), disc. review denied, 351 N.C. 357,

S.E.2d (2000); O'Carroll v. Texasgulf, Inc., 132 N.C. App. 307, 511 S.E.2d 313, disc. review denied, 350 N.C. 834, 538 S.E.2d 198 (1999) and Dunleavy v. Yates Constr. Co., 106 N.C. App. 146, 416 S.E.2d 193 (1992), found that "more recent decisions" had "clarified that it is the negligence of the employer, not the independent contractor, that must be considered; liability is direct, not vicarious, in nature."

The Kinsey opinion then expanded upon what had previously been a three part test first set forth in O'Carroll v. Texasgulf, Inc., 132 N.C. App. 307, 511 S.E.2d 313, and enumerated a list of four elements "necessary to substantiate an inherently dangerous activity claim":

(1) The activity must be inherently dangerous; (2) at the time of the injury, the employer either knew, or should have known, that the activity was inherently dangerous; (3) the employer failed to take the necessary precautions to control the attendant risks; and (4) this failure by the employer proximately caused injury to the plaintiff.

In analyzing the first of these elements, the Kinsey court noted that prior precedent held that an activity is inherently dangerous if it "carries with it some substantial danger inherent in the work itself." Although this may be decided as a matter of law by a court, the decision "often must be left for the jury to consider in light of the particular conditions and circumstances of each case."

The area where the activity is to be performed is significant. Thus, prior opinions had held that an activity conducted in a heavily-populated area is inherently dangerous as a matter of law, but that the same activity performed in a rural, unpopulated area was not. See Evans v. Rockingham Homes, Inc., 220 N.C. 253, 17 S.E.2d 125 (1941) (trench digging in urban area "too obviously dangerous to be debatable"). In fact, the Kinsey court even pointed to dicta in Evans which had stated:

Cutting and removing a tree in the midst of a forest would probably not rank as a hazardous work. But the cutting and removal of a large tree in close proximity to dwellings and in an area traversed by many people, would probably be sufficiently hazardous as to require precautions with which we are familiar.

Therefore, the Kinsey court concluded that, while prior precedent had held that tree felling in a rural, forested area was not inherently dangerous as a matter of law (see Young v. Lumber Co., 147 N.C. 26, 60 S.E. 654 (1908)), "a jury could conclude that performing such work in a populated urban area such as the one here is inherently dangerous. "

On the second issue - contemporaneous knowledge of the employer that the activity was inherently dangerous - the Kinsey court found that the plaintiff had failed to produce evidence demonstrating that defendant Frink either knew or should have known that tree felling is inherently dangerous. The court noted that:

[a]t trial, [defendant Frink] admitted she had no experience in cutting down trees and no knowledge of how it is done. Instead, she relied exclusively on the expertise of Mr. Spann. Furthermore, Ms. Frink testified that, had she known tree felling was dangerous, she would not have even let Mr. Spann perform the work.

Thus, since plaintiff's evidence failed to satisfy all the elements of her inherently dangerous claim, the Kinsey court concluded the trial court had properly refused to submit it to the jury.

Analysis

Kinsey v. Spann sets forth a precise, four-part test which a plaintiff must satisfy in order to substantiate an inherently dangerous activity claim. In doing so, it attempts to clarify the previous North Carolina appellate court opinions concerning such claims. It also provides an overview of the tortured patchwork of cases which has led to these most recent clarifications, chronicling the ambiguities of many of the older precedents which have led to confusion among practitioners.

The Kinsey opinion is especially instructive to practitioners through its holding that it is the direct liability of the employer, not the independent contractor, that must be considered in evaluating "inherently dangerous activities" claims. The Court of Appeals is correct in its conclusion that there had been some confusion among practitioners regarding this issue, since many prior opinions had suggested that an employer's liability could be vicarious in nature when an independent contractors' actions were found to be negligent.

But Kinsey, like its predecessors, also does its part to muddy the inherently dangerous activity waters. First, the opinion affirmed the trial court's actions based upon the plaintiff's failure to submit sufficient evidence that defendant Frink either knew or should have known that tree felling is inherently dangerous. The opinion apparently adopts a subjective approach to analyzing this issue. Since Frink testified that she had no knowledge of how tree felling was done, and claimed not to know that it was dangerous, the court of appeals reasoned that the trial court was proper in refusing to submit this issue to the jury.
Under the test as applied in Kinsey, there is virtually no "should have known" element to the four-part test. See Lilley v. Blue Ridge Elec. Membership, 133 N.C. App. 256, 515 S.E.2d 483, 488, disc. rev. denied, 350 N.C. 833, 1999 WL

735186 (1999) (recognizing that a defendant-employer "is chargeable for purposes of summary judgment with an awareness based upon experience and common sense") (emphasis added). Thus, if an employer or landowner can testify that they had no knowledge that an activity might be dangerous, and this testimony is accepted under the "knew or should have known" standard by the court of appeals, commercial contractors may be able to deny knowledge of the dangers involved in the myriad activities performed daily on construction sites throughout the state. Simply put, North Carolina attorneys are still left to ponder the nature and extent of evidence they will be required to introduce in order to demonstrate that a landowner or employer should have known that an activity was inherently dangerous.

Second, due to the disposition of the Kinsey case on the the court's analysis of the second element of the four-part test, practitioners are still left questioning the third element of the "inherently dangerous activity" test. To date, very little attention has been paid in North Carolina opinions to the precautions that an employer or landowner may take to control the attendant risks associated with an inherently dangerous activity. Thus, it is unclear whether a defendant landowner or employer may introduce enough evidence of preventive measures taken, or a plaintiff enough evidence of a lack thereof, so as to dispose of this issue as a matter of law.

Conclusion

While Kinsey v. Spann clarifies "inherently dangerous activity" claims for North Carolina construction law practitioners, it does not solve the entire puzzle. Kinsey sets forth a precise, four-part test for attorneys to follow in cases involving such claims, but the Kinsey court's analysis of the second element of the test may promote future confusion over the knowledge component of this test. Furthermore, due to the disposition of Kinsey, and the relative lack of success of most other plaintiffs under the most recent opinions concerning "inherently dangerous activity" claims, practitioners are left with little insight into the third element of the four-part Kinsey test. Thus, as long as work continues in trenches and trees throughout the state, North Carolina attorneys will have to keep fighting to understand and apply the law surrounding "inherently dangerous activity" claims.